E-2007-0846 

 Exemption No. 10143 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 20591 

 

In the matter of the petition of 

 

INSITU, INC. Regulatory Docket No. FAA-2007-28589

 

for an exemption from §§ 103.1, 

103.13, and 103.21 

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF EXEMPTION 

By letter dated June 16, 2007, Mr. Rob Hughes, Insitu, Inc. (Insitu), 118 East Columbia River 

Way, Bingen, Washington, 98605, petitioned the Federal Aviation Administration (FAA) on 

behalf of Insitu for an exemption from §§ 103.1, 103.13, and 103.21 of Title 14, Code of 

Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Insitu to 

operate an unmanned aircraft system as an ultralight; operate the unmanned aircraft with no 

person onboard; operate the unmanned aircraft system for commercial purposes; and to be 

exempt from a majority of part 91. 

The petitioner requests relief from the following regulations:

Section 103.1 states that for the purposes of this part, an ultralight vehicle is a vehicle 

that: 

(a) Is used or intended to be used for manned operation in the air by a single occupant; 

(b) Is used or intended to be used for recreation or sport purposes only; 

(c) Does not have any U.S. or foreign airworthiness certificate; and 

(d) If unpowered, weighs less than 155 pounds; or 

(e) If powered: 

(1) Weighs less than 254 pounds empty weight, excluding floats and safety 

devices which are intended for deployment in a potentially catastrophic 

situation; 

(2) Has a fuel capacity not exceeding 5 U.S. gallons; 

(3) Is not capable of more than 55 knots calibrated airspeed at full power in 
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level flight; and 

(4) Has a power-off stall speed which does not exceed 24 knots calibrated 

airspeed.

Section 103.13 states that: 

(a) Each person operating an ultralight vehicle shall maintain vigilance so as to 

see and avoid aircraft and shall yield the right-of-way to all aircraft. 

(b) No person may operate an ultralight vehicle in a manner that creates a 

collision hazard with respect to any aircraft. 

(c) Powered ultralights shall yield the right-of-way to unpowered ultralights. 

 Section 103.21states that: 

No person may operate an ultralight vehicle except by visual reference with 

the surface. 

The petitioner supports its request with the following information:

The petitioner states that it has carefully reviewed the Federal Aviation Regulations 

and finds that regulatory relief (as opposed to policy relief) under existing part 103 is 

adequate. The petitioner believes that part 103 also provides the FAA the regulatory 

basis to permit ultralight unmanned vehicle operations, for commercial purposes, 

within Class G Airspace, over sparsely populated terrain, and maritime areas. Part 

103 establishes rules governing the operation of ultralight vehicles in the United 

States; and defines overall size, weight, and operating characteristics. Of particular 

note, physical and operational characteristics closely align with those of the 

petitioner’s ultralight unmanned vehicle, the Insight/ScanEagle. This congruence 

enables the petitioner to build upon those detailed safety analyses and other legal 

requirements, which were completed by the FAA as a condition of issuance of the 

final part 103 rule, and provides a regulatory framework with which to evaluate the 

petitioner’s rationale for both public benefit and methods to achieve a part 103 level of 

safety. 

The petitioner notes that a detailed review of part 103 reveals only three provisions 

that require exemptions or waivers under § 103.5 to successfully operate the ultralight 

Insight/ScanEagle unmanned vehicle (§§ 103.1, 103.13, and 103.21). 

Insitu states § 103.1(a) restricts both powered and un-powered vehicles to single 

occupant. The petitioner requests that this provision be waived to permit the operation 

of the Insight/ScanEagle ultralight vehicle unoccupied – or unmanned. 

Insitu states § 103.1(b) limits the ultralight vehicle for recreation and sport purposes 

only. Background to the promulgation of the original rule published in the Federal 

Register on September 2, 1982, clarifies both the intent of this requirement and its 
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application for the petitioner’s request of waiver. According to Insitu, the FAA 

clearly states that the requirement for sport or recreation is to establish a burden of 

acknowledging and accepting an associated unmitigated operational risk that may not 

be apparent or accepted by the public (i.e., commercial operations). Further, the FAA 

suggests that the connotation of “sport” means operations are conducted away from 

concentrations of population and aircraft operations. The petitioner requests that this 

provision be waived to permit commercial applications with the restriction that the 

petitioner operates its ultralight vehicles only in Class G airspace, over sparsely 

populated terrain or water, – well away from any established concentrations of 

population and aircraft operations. 

Section 103.13 recommends that “operators engaged in ultralight operations avoid, if 

possible, areas where significant operations of aircraft are occurring so as to minimize 

the risk of midair collisions.” The petitioner requests an exemption to this provision 

and will provide and adhere to alternative methods to establish and maintain, as a 

condition of approval of this petition, an equivalent level of safety as required under 

this part. These alternatives are detailed below under equivalent level of safety. The 

petitioner states § 103.21 is a unique requirement for a part 103 ultralight vehicle. The 

petitioner states that it will describe the fully instrumented attributes of its 

Insight/ScanEagle ultralight unmanned vehicle and its intended concept of launch, 

recovery, and flight operations from a variety of domains: shore, maritime only, and 

mixed. Additionally, the ultralight unmanned vehicle operator will operate only under 

visual flight rules, which enables the ultralight unmanned vehicle to be continuously 

observable from the ground. 

The petitioner states the exclusions or waivers requested to operate under part 103 are 

relatively modest, brief, and well justified in the operational context of this petition: 

ultralight unmanned vehicle operations in Class G airspace over sparsely populated 

land or maritime operating environments. Nevertheless, an ultralight unmanned 

vehicle operating under provisions of rulemaking, clearly intended for a manned 

ultralight vehicle is a departure from the traditional FAA rulemaking. The petitioner 

expresses confidence that the FAA will realize the mutual benefits of this approach – 

it creates badly needed time for the FAA to build expertise and assemble a rulemaking 

committee; and it facilitates the collection of real safety data that will support followon rulemaking for this class of unmanned vehicles. Given the scope, complexity and 

diversity of unmanned aircraft systems, the establishment of codified rules may be 

years away. The petitioner reiterates that this petition for exemption facilitates the 

collection of operational and safety data information and experience under safe, 

controlled conditions that will support and serve as a basis for well-grounded future 

unmanned aircraft rulemaking that is fully compliant. The petitioner states it will 

offer to work closely with the FAA to develop, monitor, report, and coordinate data 

and information as a condition of approval of this petition that will support future 

FAA rulemaking actions for unmanned aircraft. 
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 A summary of the petition was published in the Federal Register on July 19, 2007 

(72 FR 39659). Two comments were received. The commenters were not in support of a 

grant of exemption. 

Experimental Aircraft Association stated that part 103 does not apply to unmanned 

aerial vehicles and believes the FAA should deny the petition for exemption. 

Air Line Pilots Association (ALPA) states that after reviewing Insitu’s petition, it is 

unclear under what rules Insitu operates its ScanEagle. ALPA does not believe that 

the requested exemption applies to the petitioning operator’s aircraft. Moreover, 

ALPA states that UAS entry into National Air Space is still in its infancy and should 

be given time to mature prior to the FAA considering any exemptions to the existing 

UAS policy. ALPA is not in favor of granting this exemption. 

The FAA's analysis is as follows: 

The FAA has considered fully the petitioner’s request and finds that a grant of 

exemption, would not be appropriate, would not be in the public interest, and would 

not provide a level of safety equivalent to the current regulations. The relief sought is 

inappropriate because part 103 does not apply to unmanned aircraft and because it is 

contrary to FAA policy to grant exemptions to the applicability provisions of its 

regulations. 

While many assertions are made in the petition, no data is presented to the FAA to 

demonstrate that the relief sought would provide a level of safety equivalent to that 

provided by part 103. The petitioner states the rule promulgated as part 103 clearly 

met the FAA safety objectives and bears testimony to the fact that this current rule is 

virtually unchanged since its inception 25 years ago. Operations under part 103 are 

safe when ultralight vehicles are operated in accordance with those rules. Though the 

petitioner proposes to operate exclusively under the provisions and exempted 

provisions of part 103, the uniqueness of the exemption requested is so dramatic as to 

nullify any connection to an operation of a manned ultralight. 

The petitioner states that in the absence of the relief sought, virtually all commercial 

UAS applications, flight training, and pre-delivery flight testing within the United 

States regardless of UAS weight, size, operating characteristics and or capability can 

not be conducted. Contrary to the statements made in the petition, FAA has a process 

to authorize UAS operations in existence for small aircraft. 

 

Section 103.13(b) states that no person may operate an ultralight vehicle in a manner 

that creates a collision hazard with respect to any aircraft. The FAA notes that Insitu 

did not request an exemption from this section and presented no argument or approach 

as to how this requirement would be met. With no approved see and avoid capability 

existing today, any mitigation or argument must clearly show, using data, how 
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compliance with a regulation will be met. Anti-collision lights, as a sole mitigator, do 

not satisfy this requirement. 

The petitioner states § 103.21 is a unique requirement for a part 103 ultralight vehicle. 

The petitioner states that it will describe the fully instrumented attributes of its 

Insight/ScanEagle ultralight unmanned vehicle and its intended concept of launch, 

recovery, and flight operations from a variety of domains: shore, maritime only, and 

mixed. Additionally, the ultralight unmanned vehicle operator will operate only under 

visual flight rules, which enables the ultralight unmanned vehicle to be continuously 

observable from the ground. The FAA believes this to be more relative to situational 

and positional awareness of the onboard pilot more than the ability to be seen by those 

on the ground. 

 Finally, the FAA believes the recommended solutions to establishing an equivalent 

level of safety have no basis in data. Proposals such as lack of air traffic density, the 

use of a bird radar, etc., are not meaningful without the applicant submitting extensive 

data to support the case being made. None has been provided. Furthermore, the FAA 

finds that Insitu has failed to show how it is unique from the general class of regulated 

persons so as to justify an exemption. The FAA notes that if it were to determine that 

relief from the current rule is acceptable, it would take appropriate action to change 

the rule so all persons may benefit. 

The FAA’s Decision: 

 In consideration of the foregoing, I find that a grant of exemption would not be in the 

public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 

and 44701, delegated to me by the Administrator, the petition of Insitu, Inc. for an exemption 

from 14 CFR §§ 103.1, 103.13, and 103.21 is hereby denied. 

Issued in Washington, DC, on Sep 27 2010. 

/s/ 

Kalene C Yanamura 

Acting Director, Aircraft Certification 

 Service